Date: 20010330
Docket: IMM-5876-99
Neutral Citation: 2001 FCT 267
BETWEEN:
SHAMIRA JANMOHAMED & SADRUDIN MUSA
Applicants
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision dated October 29, 1999 of Mrs. Helen Patricia Allison, visa officer (the "visa officer") of the Immigration Section of the Canadian High Commission in Nairobi, Kenya, refusing the female applicant's (the "applicant") application for permanent residence in Canada.
FACTS
[2] The applicant is a citizen of Kenya who was offered a position from her uncle under the provisions of the Immigration Act and Regulations on an approved Family Business Job Offer. Her uncle is the owner and Chief Operating Officer of CompuForms Inc. in Calgary. The Family Business Proposal was received by the Canadian High Commission in Nairobi, on March 16, 1999.
[3] The applicant applied in the assisted relative category and listed three intended occupations in Canada. She listed the occupations of Purchasing Officer, (NOC 1225.0), Sales Manager (NOC 0611.1) and Administration Officer (NOC 1221). Her application was received at the Canadian High Commission in Nairobi, on March 28, 1999.
[4] The applicant has completed seven years of primary and four years of secondary school in Kenya. In 1983, she obtained a diploma in Computer Programming and Business Systems from Herzing Institute and in 1984, she obtained a diploma in Hair Design from Kenya School of Hairdressing.
[5] In 1991, for less than three months, the applicant worked part-time as a Traffic Officer for El-Al Israeli Airlines. She also worked as the Assistant Airport Manager for Air India. From 1992 to 1995, she worked as a Station Manager for Aviation Security Consultant in Nairobi and since 1995, she works as a Sales Manager for Hair Tact Unisex Hair & Beauty Salon, a hairdressing salon that she owns with her husband in Nairobi.
[6] On October 19, 1999, the applicant was interviewed by visa officer, Helen Patricia Allison and in a letter dated October 29, 1999, the applicant was advised that her application for permanent residence in Canada was refused.
[7] I have carefully reviewed the file and the documents filed by both parties.
[8] In light of the evidence before the visa officer, I believe that her conclusion that the applicant could not carry out the occupation of Sales Representative is unreasonable.
[9] The occupation of Sales Representative (NOC 6411.0) is stated as follows under the NOC:
Sales Representatives, Wholesale Trade (Non-Technical) sell non-technical goods and services to retail, wholesale, commercial, industrial and professional clients. They are employed by establishments that produce or provide goods and services such as petroleum companies, food, beverage and tobacco producers, clothing manufacturers, motor vehicles and parts manufacturers, hotels, business services firms and transportation companies. Sales representatives, wholesale trade who are supervisors are also included in this unit group.
[...]
Sales Representatives, Wholesale Trade (Non-Technical) perform some or all of the following duties:
Promote sales to existing clients.
Identify and solicit potential clients.
Provide clients with a presentation on the benefits and uses of goods or services.
Estimate or quote prices, credit terms, warranties and delivery dates.
Prepare or oversee preparation of sales contracts.
Consult with clients after sale to resolve problems and to provide ongoing support.
Review and adapt to information regarding product innovations, competitors and market conditions.
May supervise the activities of other sales representatives.
Employment Requirements
Completion of secondary school is required.
A university degree or completion of a college or other program may be required.
Experience in sales or in an occupation related to the product or service is usually required.
Supervisors and senior sales representatives require experience.
[10] As suggested by the applicant, as a self-employed business owner, she must perform many of the main duties of the said occupation by necessity.
[11] It is obvious that such a person must uprise herself of "product innovation, competitions and market conditions...promote sales to existing clients...provide clients with presentation on the benefits and uses of goods and services...identify and solicit potential clients...be able to supervise the activities of other sales representatives..."
[12] The visa officer also erred when she gave three units under the occupational demand factor although she found that the applicant did not have any experience and did not meet the requirements of a Sales Representative. As was decided by our Court in Dauz v. Canada (M.C.I.), [1999] F.C.J. No. 1307 (T.D.) and also in Bhogal v. Canada (M.C.I.) [2000] F.C.J. No 1581 (T.D.), it is not correct to award zero units of assessment for experience if units were awarded for occupational demand. Factor 4(1)a) requires that the applicant satisfy the experience qualification in order to be awarded some units of assessment for occupational demand.
[13] In my view and in light of the above, the visa officer's conclusions that the applicant has no experience or qualification in the occupation are unreasonable.
[14] Regarding the educational factor, the applicant argues that the visa officer further erred when she concluded that the applicant could not be awarded five units under the education factor since the Herzing Institute is not recognized as a diploma granting institution by the Ontario Ministry of Education.
[15] The applicant submits that there is no requirement such as the one suggested by the officer in the Immigration Regulations, 1978. The mandate of the visa officer is not to estimate equivalency to Canadian standards.
[16] The visa officer wrote in the refusal letter:
In awarding units of assessment for education, I advise that as you have completed secondary school but your qualifications would not provide entrance to university and the diploma from the Herzing Institute does not meet our requirements of occupational certification.
[17] In her affidavit the visa officer explained:
Under Education 5 units were awarded for education. The Applicant did not complete secondary school and sit for the Advances certificate of Education ("A" Levels) which allows entrance to a University. The Herzing Institute is not recognized as a diploma granting institution by the Ontario Ministry of Education.
[18] The relevant provisions of Schedule 1 are as follows:
1. Education (1) Subject to subsections (2) to (4), units of assessment shall be awarded as follows:
(a) where a diploma from a secondary school has not been completed, zero units;
(b) where a diploma from a secondary school has been completed, the greater number of the following applicable units:
(I) in the case of a diploma that does not lead to entrance to university in the country of study and does not include trade or occupational certification in the country of study, five units,
(ii) in the case of a diploma that may lead to entrance to university in the country of study, ten units, and
(iii) in the case of a diploma that includes trade or occupational certification in the country of study, ten units;
(c) where a diploma or apprenticeship certificate that requires at least one year of full-time classroom study has been completed at a college, trade school or other post-secondary institution, the greater number of the following applicable units:
(i) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(i) or (iii) as a condition of admission, ten units, and
(ii) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in
subparagraph (b)(ii) as a condition of admission, thirteen units;
[19] The evidence before the visa officer showed that the applicant attended classes at the Herzing Institute from 1:00 p.m to 6:00 p.m daily, five days a week for one year. Therefore, I believe that the applicant meets the requirements under (1)(c)(i) of the education factor.
[20] The respondent has not submitted any explanation as to the source of the requirement imposed by the visa officer that the institution be recognized as a diploma granting institution by the Ontario Ministry of Education. There is no evidence whether this is a requirement under the Immigration Act or Immigration Regulations.
[21] The policy in the Overseas Processing (OP) Manual is the only thing that might explain why the visa officer thought she had the authority to impose this requirement. The policy indicates:
o) Visa offices must ensure that the certificates/diplomas that are presented are genuine and are issued in accordance with the educational standards and practices of the country in which the issuing institution operates.
[22] However, I am not convinced that the policy grants the visa officer the authority to impose such a requirement.
[23] I am not aware that there is an obligation on the applicant to bring to the hearing before the visa officer evidence that the institution is a diploma granting institution recognized by the Ontario Ministry of Education. Furthermore, the respondent have not explained how the visa officer could impose the requirement that the Herzing Institute be a diploma granting institution recognized by the Ontario Ministry of Education.
[24] Since the visa officer did not provide evidence, I am not ready to speculate on whether she had the authority to impose this requirement or not. If she had the authority, it should have been submitted into evidence.
[25] Therefore, I believe that the applicant was entitled to receive the 10 units of assessment under the education factor.
[26] I believe that the visa officer made three different errors and that those errors may have had a serious impact on the decision.
[27] This application for judicial review is therefore allowed. The visa officer's decision is set aside and the matter is referred to another visa officer for re-determination pursuant to these reasons.
[28] Neither counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 30, 2001
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